Kwena Atogo v Francis Okumu Amboye & 5 others [2020] KEELC 2449 (KLR)
The bottom line
#The Environment and Land Court in Busia set aside an unfair bill of costs taxation, ruling a transfer application cannot attract suit-level instruction fees.
What this practically means
#Executive summary
#Key legal issues
#Whether the taxation was conducted fairly and within proper limits
The taxation was fundamentally flawed because the applicant was not heard and the taxing officer went beyond what should have been considered, awarding exaggerated, erroneous or presumptuous costs.
The applicant's averments that he was denied a hearing were unrebutted; the respondents' response was too general to address specific facts. The respondents' own submissions conceded points yet re-formulated a bill without the applicant's input. Costs awarded were found exaggerated, erroneous and/or presumptuous, and the taxing officer taxed items relating to the whole suit despite the earlier order that each party bear its own costs.
Whether a transfer application is a suit attracting suit-level instruction fees
A transfer application is an interlocutory step in the suit, not a suit, and cannot attract the Kshs. 49,000/= instruction fee awarded; endorsing it would be unjust enrichment.
The court held that an application for transfer merely moves a suit between forums and is normally simple. If filed in the suit's file it is an application in the suit, not a separate suit, and its bill of costs would belong in its own file if independently filed. The hefty instruction fee of Kshs. 49,000/= for such a step would amount to unjust enrichment and the respondents' contrary argument was mere ingenuity.
Whether the taxed items 1 to 10 related to the main suit contrary to the costs outcome in the suit
The applicant's version was accepted: the taxed items related to the entire suit, yet the consent/compromise showed the respondents were not condemned to pay costs of the suit and costs had been ordered on a each-party-bears-own basis.
The court found the applicant's averments resonated with the truth: the amounts from item one to item ten were for the entire suit itself, while the settlement compromise clearly showed the respondents were not condemned to pay costs of the suit. Taxing the applicant for costs of the suit was therefore erroneous and outside the scope of the court's earlier orders on costs.
Legal principles established
#- An application for transfer of a suit is an interlocutory step and cannot attract the level of instruction fees appropriate to a suit
- A taxing officer must afford the party affected an opportunity to be heard; taxation conducted without that input is fundamentally flawed
Court orders
#- 1.The application is allowed in terms of prayer 2
- 2.The decision made in taxation on 6/3/2019 is set aside
- 3.The bill of costs shall be taxed again in the proper way
- 4.The applicant is awarded the costs of the application
- Jurisdiction invoked
- Rule 11 of the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kwena Atogo v Francis Okumu Amboye & 5 others [2020] KEELC 2449 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 1st July, 2019 in the principal suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2449/eng@2020-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.